T.C. SUPREME
1.law office
Based on: 2012/16321
Decision: 2013/3719
Date of decision: 18.03.2013
THE CASE OF CANCELLATION AND REGISTRATION OF TITLE DEEDS – THE FRAUD CAN BE PROVED WITH ALL KINDS OF EVIDENCE – THE COURT NEEDS TO EXAMINE AND DECIDE THE CLAIMS AND EVIDENCE OF THE PARTIES IN ACCORDANCE WITH THE PRINCIPLES DESCRIBED – THE PROVISION IS VIOLATED
ABSTRACT: Cheating (deception) can be proved by any evidence, and the use of the right of cancellation does not depend on any form. A statement of will that will be sent to the opposite party within a one-year period from the date of learning of the fraud (deception) can also be used defiantly or through litigation. However, the court has not conducted a review and evaluation that covers the principles and facts described above. In this case; it is not true that the claims and evidence of the parties should be examined by the court in accordance with the principles described and a decision should be made according to the result, but it was decided with a wrong assessment and a missing examination.
(6098 P. K. m. 36) (818 P. K. m. 28)
Case: The cancellation and registration of the title deed seen between the parties, at the end of the compensation case, the decision made by the local court regarding the rejection of the case was appealed by the plaintiff’s deputy within the legal period, the file was examined, the report of the Audit Judge Derya Al Decbeyoglu was read, the explanations were listened to, and the necessary discussion and consideration was considered:
Verdict: The case relates to the cancellation of the title deed and requests for registration and compensation.
In the court, in the concrete case where the case is based on the legal reason for the appeal from the donation, the 244 of the Code of Obligations. it was decided to dismiss the case on the grounds that the conditions for recourse from the donation described in the article did not occur.
From the contents of the file and the collected evidence, the plaintiff’s real estate No. 3 parcel was transferred to defendant N. On 08.02.2001.by selling their shares in parcels 21, 243, 317 and 320 on 27.02.2004, the defendant M.it is understood that it is related to .
The plaintiff said that he had concerns about his advancing age and the death of his wife, that the defendants would be with him until the death of his son and his bride, and that he would take care of his real estate in 3 parcels for his bride.that after a while he transferred his shares in parcels 21, 243, 317 and 320 to the defendant’s son in the belief that they would take care of him, but in 2009 he became uncomfortable and in need of care, the defendants put him in front of the door in these days when he needed it most, so that he understood that their main goal was to get their valuable real estate and was deceived, upon learning that the defendants were going to sue, he also opened the case at hand, claiming that they had taken some of the real estate out of their hands.
As for the described content of the claim and the way it is put forward, it is clear that it is based on the legal cause of cheating (deception). The plaintiff also stated that the assets were taken away by fraud (deception) with the petition dated 13.07.2011 during the trial, explaining that it was based on the legal cause of cheating (deception).
As is known, cheating (deception) is defined as deliberately arousing erroneous blood in it or maintaining or maintaining an essentially existing erroneous blood in order to lead someone to make a statement of will, especially to enter into a contract. Error is also an error, and in cheating, there is an error. as explained in Article 36/1 of the Turkish Code of Obligations No. 6098 (in Article 28/l of the Code of Obligations No. 818), which entered into force on 01.07.2012, < if one of the parties entered into a contract as a result of deception of the other, it is not bound by the contract, even if it is not based on error.> In case of the existence of the mentioned conditions, the deceived party can eliminate the legal relationship as an effective one in the past (makable shamil) by exercising its right and ask for what it has given back.
On the other hand, cheating (deception) can be proved by all kinds of evidence, and the use of the right of cancellation does not depend on any form. A statement of will that will be sent to the opposite party within a one-year period from the date of learning of the fraud (deception) can also be used defiantly or through litigation.
However, the court has not conducted a review and evaluation that covers the principles and facts described above.
In this case, it is not true that the claims and evidence of the parties to the court should be examined in accordance with the principles described and a decision should be made according to the result, while it was decided by an erroneous assessment and incomplete examination, as written.
Conclusion: The plaintiff’s appeals against this direction are in place. For the reasons explained by the adoption of the provision (provisional Article 3 of the Law No. 6100.by sending the article) HUMK No. 1086.428 of. it was unanimously decided on 18.03.2013 that the advance payment received should be refunded to the appellant and that it should be violated in accordance with the article.
